In re Estate of Kimotho alias Kariuki Kimotho (Deceased) [2026] KEHC 13590 (KLR)

 REPUBLIC OF KENYA IN THE HIGH COURT KENYA AT KERUGOYA SUCCESSION CAUSE NO. 389 OF 2015 IN THE MATTER OF NAFTARY KARIUKI KIMOTHO ALIAS KARIUKI KIMOTHO (DECEASED) EUNICE WAMBUI GATII .......................................................................APPLICANT

VERSUS JANE WANJIKU NDEGE.............................................................1ST RESPONDENT ERASTUS MITHAMO KARIUKI ...............................................2ND RESPONDENT JUDGMENT *The application* 1. The applicant seeks revocation of Grant by SUMMONS FOR REVOCATION AND/OR ANNULMENT OF GRANT dated 12/9/2018 and expressed to be brought *UNDER SECTION* 76 *SUCCESSION ACT AND RULE* 44 *PROBATE & ADMINISTRATION RULES)* for specific reliefs as follows: *“1. That Letters of Administration issued on 18/1/2016 and confirmed on 22/6/2016 be revoked and annulled on the grounds that the proceedings to obtain the same were defective in substance and the grant was obtained fraudulently by making of false statements and concealment from the Court of things material to the case of the applicant herein.* *2. That costs be provided for.”* 1. The application was based upon the grounds set out in the application as follows: *“1. That the Petitioner lied to the Court by using a letter dated 15/712010 to file a succession cause in 2015 knowing fully well that the property had changed hands and was not in the deceased's name.* *2. That further it was mischievous for the Petitioner to file a succession cause of rice holding which is not held under absolute title but is a tenancy from the National Irrigation Board.* *3. That the Petitioner failed to disclose to the

Court that the rice holdings are governed by the Irrigation Act and the same provides for succession being done in the Manager's office of the Irrigation Settlement Scheme or the Advisory Committee.* *4. That as at the time this Succession Cause was filed the rice holding No. 3740 did not exist as it had been subdivided and transferred/surrendered and rice holding No.* *NO. 3740 A* *was transferred to me by* *ERASTUS MITHAMO KARIUKI* *(2nd Respondent) and* *NO. 3740 B* *measuring 3acres was transferred/surrendered to one* *JOHN NJAGI KEBUNGO MIGWI* *by the 1st Respondent.* *5. That even at the time of filing this Succession Cause the Petitioner had gone and transferred my rice holding No. 3740 A to one ALICE / WAMBURA MURAGURI.* *6. That the Grant was issued in error and ought to be nullified.”* 1. The application was supported by the supporting affidavit of the applicant sworn on 12/9/2018 setting out the facts relied on as follows: *“**SUPPORTING AFFIDAVIT* *I, EUNICE WAMBUI GATII ID NO. 1400369 a resident of Kirinyaga County and of P.O BOX 110 WANG'URU in the Republic of Kenya do hereby make oath and state as follows:-* *1. THAT I am an. adult female of sound mind and therefore competent to* *swear this affidavit.* *2. THAT rice holding o. 3740 ceased to exist on 23rd November, 2010. (Annexed and marked EWG 1 is a copy of the background history of the

rice holding from the National Irrigation Board).* *3. THAT I became the legal owner of the rice holding No. 3740 A on 16/10/14. (Annexed and marked EWG ~ is a copy of the Tenant Changes).* *4. THAT I was issued with a Tenant Card and License on 17110114. (Annexed and marked EWG 3 is a copy of the Tenant Card and License).* *5. THAT as at the time of this Succession Cause, rice holding No. 3470 did not exist as it had been subdivided and transferred/surrendered as follows:* *NO. 3740 A was transferred to me by ERASTUS MITHAMO KARIUKI (2nd Respondent) and NO. 3740 B measuring 3 acres was transferred/surrendered to one JOHN NJAGI KEBUNGO MIGWI by the Petitioner/1st Respondent.* *6. THAT as at 2015 when the Succession Cause was filed the rice holding was not registered in the name of the deceased KARIUKI KIMOTHO.* *7. THAT the Petitioner lied to the Court by using a letter dated 15/7/2010 to file a Succession Cause in 2015 knowing fully well that the property had changed hands and was not in the deceased's name.* *8.* *THAT* *further it was mischievous for the Petitioner/1st Respondent to file a succession cause of a rice holding which is not held under absolute title but is a tenancy from the National Irrigation Board.* *9.* *THAT* *the Petitioner/1 st Respondent failed to disclose to the Court that rice holdings are governed by the Irrigation Act and the same provides

for succession being done in the Manager's Office of the Irrigation Settlement Scheme or the Advisory Committee.* *10.* *THAT* *this Succession Cause was therefore done to defeat my interest.* *11.* *THAT* *even at the time of filing the succession cause the Petitioner/1st Respondent had gone and transferred my rice holding NO. 3740 A to one ALICE WAMBURA MURAGURI pursuant to a consent order in KERUGOY A CMCC NO. 64115 on 21/5/2015 then filed this Succession* *Cause to defeat my interest. (Annexed and marked* *EWG 4* *is a copy of the order).* *12.* *THAT* *the succession cause was filed in error and through non disclosure to the Court of material things to the cause.* *13.* *THAT* *no prejudice shall be suffered by any of the parties if the grant is revoked and nullified.”* *The response* 1. The Respondents filed a response by way of a joint Replying Affidavit of 25/10/2018 opposing the application as follows: *“**REPLYING AFFIDAVIT* *I, JANE WANJIKU NDEGE and ERASTUS MITHAMO KARIUKI of P.O. BOX 80, WANG'URU do hereby solemnly make oath and state as follows:-* *1. THAT we are the 1st and the 2nd Respondents herein.* *2. THAT we have read and understood the application dated the 12th September 2018 and do wish to respond as hereunder.* *3. THAT to the best of our knowledge when the succession cause was being commenced the subject rice holding No.

3740 belonged to the deceased and there was evidence to the same.* *4. THAT the grounds set-out herein are strange to us and do not satisfy the ingredients for revocation.* *5. THAT the issues being raised are as to the proper forum where the cause ought to have been filed which could only be a ground of appeal and not revocation.* *6. THAT technically the Applicant is seeking cancellation of title which is a preserve of the Environment and Land Court and it is before this court that the claim ought to have been made.* *7. THAT should the grant be revoked then the succession court would only be left to determine a dispute as to the ownership of the rice holding which is a preserve of the Environment and Land Court as per the law.* *8. THAT the Application for revocation is thus totally misplaced, frivolous and an abuse of the court process and should thus be dismissed with costs to us.* *9. THAT what is deponed to herein is true to the best of my knowledge, information and belief save wherein otherwise stated.”* 1. The 2nd Respondent subsequently filed a sperate affidavit sworn on 17/6/2019 urging the Court to give the land to his sister as follows: *“**AFFIDAVIT* *I ERASTUS MITHAMO KARIUKI* *of ID No 277J9097 Post Office Box Number 39 WANGURU in the Republic or Kenya do hereby make Oath and state as follows:-* 1. *TIIA* *T, I am one or the beneficiaries herein

therefore duly competent to swear this affidavit.* *2.* *THAT* *the petitioner herein is my sister.* *3.* *THAT* *I am aware of the said succession that has been filed in this court and I was also involved in filing of this succession case.* *4. THATduring the filing of this Succession we commenced the same together; we went to chief together and collected the chief’s letter.* *5. TIIAT* *we were in the agreement that the said Holding/Land* *No. 3740* *should be inherited by my sister whereas I have no problem.* *6.* *THAT* *I another parcel of land that I inherited from my parent that is located at Wang’uru Plot No. 881 Wachoro’s measuring 10 acres.* *7.* *THAT* *the said parcel or land belonged to our late parent. And I have no claim to the said parcel of land.* *8.* *THAT.* *I have no objection in my sister inheriting the said parcel or land.* *9.* *THAT* *my sister has no other place to say or to call home so it will be unfair, unjust if we don't give her the share that was left to her by our parent.* *10.* *TIIAT w**hat is deponed to herein above is true and within my own knowledge, information and belief except where I have been informed and sources whereof are disclosed.”* *The Evidence* 1. The parties then adduced oral evidence before the court which is set out in full below. 2. **PWI, *Eunice Wambui Gatii,* the applicant

herein testified as follows: *“I filed Summons for Revocation of Grant dated 12th September, 2018 and filed signed supporting affidavit. I wish to rely on the Affidavit as evidence. I am in court to claim Plot no. 3740A Karaba Section. It is a Rice holding. I see papers indicating the plot belongs to Naftaly Kimotho. On 16th October, 2014 the land was owned by Erastus Mithamo Kariuki. He was the brother to Jane Wanjiku Ndege. I asked Erastus to transfer the land to me.* *We went to a lawyer and wrote an agreement and affidavit. We then went to Mwea Rice Board Managers and signed the agreement. The Manager then changed the records. Shown Exhibit 2 on supporting affidavit. I wish to produce that document of change. Shown page 1 I was given History of Rice holdings. I was issued a license as exhibit 3 and Exhibit 2 the Tenant Card. I produce page 1 as Exhibit 4.* *The land did not belong to deceased at the time the petition was filed. At that time 2015 the land was in my name since 2014. Jane got a grant in court over that land. I am aware she transferred the land to Alice Wambura Muraguri. She got a court order. It is at page 4 of my annexures in my supporting affidavit. See order.* *According to exhibit at page 1 no. 34 the land was transferred to Alice Wambura. The normal procedure should be for a person to go to chief, get a letter and take it to the NIB Board Manager. That

procedure was not followed. The court was not made aware of the original transfer. I seek revocation of grant and the land to be returned to me and I also seek costs.* *Cross – Examination by Applicant* *The land was sold to me by Erastus. We went to the manager with Erastus. The land was in his name. The manager would not have transferred if it was in joint names. Erastus had remained with plot 3740(a). 3740(b) had been sold before. I have never taken a lease of the land. I did not lease it out either. I did not buy land belonging to you as the manager would not have changed it. My license was cancelled by the court order. That should not have been done. When I bought the shamba the manager had not indicated any other owner other than Erastus. The land was in the name of Erastus Kariuki. I had not been warned not to buy it. I bought the land from Erastus. We went to Manager together with Erastus. The deal was with Erastus.* *Re – examination* *Shown land history page 1.* *Entry 10 the chief reported Erastus was missing. He had been missing and was later found to be buried. That was in 2010.”* 1. RW1 Jane Wanjiku Ndege, the petitioner, resident of Kiandegwa at Kariba Mwea East, testified as follows: *I am the petitioner in the case. I have seen the application of Eunice Wambui Gatii. She asks for Revocation of Grant. I filed a replying affidavit dated 25th October,

2018.* *[Court:* *Replying Affidavit of 25th October, 2018 is adopted as witness evidence in chief.]* *The land belonging to Wambui was not given by me. It was given by my father. It is 4 acres. My brother had his own land of 10 acres elsewhere we therefore filed succession and I got my land according to what our father said.* *Wambui purchased the land from my brother Erastus Mithamo. He sold her 1 acre. I am not the one who sold the land to her. As she bought the land I made a call to her and I told her to stop buying the land as it was not clear who the land belonged to. She told me that she knew my brother only.* *Cross – examination by Ms. A. Thungu for the Applicant.* *I am the filed the succession cause. We filed with my brother. We obtained a death certificate. I showed that our father disappeared in 2006.* *[Did you get a letter for presumption of death?] I went to court. I do not have an order of the court.* *[Property in your father’s name is Rice holding no. 3740?]* *Yes, it has no title deed. It is given by the National Irrigation Authority. It is from the Board. It is government land and leased to tenants.* *[It is open property? You did not disclose?]* *I thought it belonged to Naftaly Kariuki Kimotho. I wanted to have the land to be transmitted from the deceased.* *[Do you know what happens to land at the Board when the tenant dies?**]* *I

should go to the Board to say that the tenant had died.* *[You did not follow the procedure under the Act?]* *I took the Chief’s letter to the Board and the Board gave me the letter to hold for my brother but the land was ours.* *[Letters to board. Your brother wrote to the board?]* *I do not know whether the land was given to my brother without my knowledge. I was the trustee for my brother. I do not know how my brother become the owner.* *[Your brother wrote a letter when he became 18 years?]* *When we got the land he was 35 years. He was not underage.* *[After 2010, you filed succession Cause in 2015?]* *When there matters happened we filed the succession cause.* *[After the Board had given the land to your brother? – In 2015 the land was not in the hands of your father?]* *My brother wrote the letter when my purchaser was buying land from him.* *[Tenancy Records Exhibit No. 1]* *Date of Board of 17th October, 2014 citing was that plot 3740A ex farmer Erastus Mithamo Kariuki and Eunice Wambui was appointed for the parcel 3740A.* *[When the succession was filed the land was already subdivided into A and B.]* *I did not know it had been subdivided and the land had changed the numbers.* *[The Rice holding was reading the name of the applicant?]* *I did not know about it.* *[You knew the applicant was buying the land from your brother?]* *I

did not know.* *[You said you called her to warn her?]* *She said she did not know me and she knew only my brother.* *[You filed the succession cause to defeat the sale of the land by your brother?]* *No.* *[Letters of Administration to the Estate what was the purpose?]* *I wanted to get my father’s land. When we did the succession I was told to wait. On getting the letters of Administration I took it to the Managers Records. The manager called a person called Njagi and told him that the owner of the land had come to claim the land.* *[Tenant’s card issued to you?]* *I do not have a Tenant Card.* *The land has been sold at the Manager’s office severally?* *[The attempt to sell the land to Wambura Alice was cancelled by the Wangúru court?]* *I do not know how the land was transferred. I do not know who is cultivating the 3 acres. It is John Njagi Kibungo a person who we had given the land.* *Re – examination by Ms. Wamotho* *We filed the succession because we had not inherited our father’s estate. We followed our father’s wishes. I did not intend to defraud anyone. I am the one who got the land. I do not know how my brother got the land.* *[Letter dated Exhibit 6 by Manager.] Erastus asked for the land on 12th March, 2009. My brother asked for the land 12th March, 2009. On 18th August, 2020, I requested that the land be in my name. Paragraph 11 in trust

for my brother. I do not know how the land. We gave the land to the Police Officer John Njagi because of his help to get the land from a trespasser on the land.”* *Submissions* 1. Despite opportunity granted to the Petitioner/ respondent to the Summons for revocation of Grant by several adjournments on 9/6/2025, 29/7/2025, 2/12/2025, and 16/3/2026 the Respondent did not file submissions in response ot the applicant’s submissions dated 14/7/2025, and the Court on 6/7/2026 reserved judgment for 17/9/2026.

2. The substance of the applicant’s submissions was that the suit property was government land and not private estate, which would be available for succession in the Deceased’s estate, and painted the succession proceedings as fraudulent, as follows: “*APPLICANT'S WRITTEN SUBMISSIONS* *Brief history of facts* *On 23/3/2015 the Respondent herein filed a succession cause for the estate of Naftali Kimotho.* *The said Naftali Kimotho went missing. He was the legal tenant for rice holding No 3740. He left behind the Respondent and her brother Erastus Mithamo who has since passed on and has been substituted by the Respondent herein.* *The only property they indicated in the deceased's assets was rice holding No.

3740. They distributed the same to the Respondent.* *This was after the said Erastus Mithamo had gone to the office of the Manager Mwea Irrigation Scheme and surrendered one acre to the Applicant. The Respondent had also surrendered the other 3 acres to a third party. She had also sold a portion of the rice holding to one Alice Wambura. They therefore filed this succession cause so that they could go behind the surrender transactions that the had transacted at the office of the Manager of the Mwea Irrigation Scheme.* *They were issued with joint letters of administration in this case on 18/1/2016 and the grant was confirmed on 16/6/2016.* *The parties had other litigation in Wang'uru Court and that is where the Applicant was first served with documents which made her aware of this case which was already concluded. She therefore filed the present application for annulment/ revocation of the grant.* *H**oldings are not free property* *It is trite Law that property within a scheme of National Irrigation Board (NIB) now known as The National Irrigation Authority, such as a rice holding, is generally not considered part of a deceased person's free property for succession purposes. These holdings are typically allocated to individuals as licensees by the NIA, and they do not acquire full ownership rights. Therefore, such property cannot be directly transferred through

inheritance under the Law of Succession Act.* *lndividuals who occupy land within National Irrigation Board (NIB) now known as The National Irrigation Authority schemes are usually licensees, meaning they have permission to use the land but not full ownership. We submit that land in an Irrigation Scheme cannot be the subject of Succession proceedings because such land is the property of the Irrigation Board and is not free property of a deceased person that can be distributed under the Law Of Succession Act Chapter 160 Laws of Kenya.* *It is* *not in doubt that the rice holding No. 3740 is an* *Irrigation Scheme* *and therefore vests in the NATIONAL IRRIGATION AUTHORITY. It was not* *part* *of the free property of the Respondent's father Naftali Kimotho which this* *COURT* *could distribute to his heirs as was done in this file.* *It follows therefore that the confirmation of grant don on 16/6/2016 and certificate of confirmation of grant issued on 22/6/2016 in so far as it purported to distribute the rice holding was a nullity as the Court had no jurisdiction to do so. And as was held in the case of MACFOYVS UNITED AFRICACO. LTD 1961 3 ALLE.R. 1169:* *If an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado though it is

sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.".* *We submit that the Succession Court had no jurisdiction to distribute the rice holding to the heirs of NAFTALI KIMOTHO when it did not form part of her Estate.* *We submit that what transpired in this cause was of no legal consequences. All that Naftali Kimotho were required to do during his life-time was to appoint someone to succeed him as licensee of rice holding No. 3740 as provided under Section 7 (1) of the Irrigation {National Irrigation Schemes} Regulations 1977. NIB's Authority:* *In the case of* *Republic Versus National lnigation Board & Another Ex parte Paul Ikonya Njoroge* *(2017), the court in determining whether a rice holding can be the subject for distribution under the Law of Succession Act stated, ”it is no doubt that the rice holding was in an irrigation scheme and therefor vests in The National Irrigation Board. It was therefore not part of the free property of the deceased.'* *Hon. Justice Cherono, relying on the case of* *Municipal Council of Mombasa v Republic and Umoja Consultants Ltd* *2002 eKLR expressed himself thus:* *“I agree with the above decision. It is trite that the National Irrigation Board has the sole statutory mandate to manage, control, regulate and allocate land within National Irrigation

Schemes in Kenya. It is also trite that the National Irrigation Act cap 347 is a self-regulating and sustaining law with definite provisions for dispute resolution and Appeal mechanisms for anyone aggrieved by the decision made by the Board under the Act. These decisions by the Board can only be challenged by way of Judicial Review under Order 53 CPR and Article 22 of the Constitution of Kenya.* *Taking the position taken by Ju tice B. Olao in Catherlne Wambu Minithi vs Mwea Irrigation Settlement Scheme & Another (2014} eKLR which is persuasive to this court, the court stated that' the subject Rice Holding is not personal property to form part of the estate of the deceased, and therefore the distribution of the same should in accordance with the provisions of the Irrigations Act and Regulations there under.* *To that extent we submit that the grant that was issued in this court is a nullity and was issued without jurisdiction.* *Filing succession over land of a person who is alive* *The Applicant has deponed that the Respondent herein lied to the court by using a chiefs letter dated 15/7/2010 introducing the deceased's family then filing this succession cause in the year 2015 knowing well that the property was in the name of the respondent at the time of filing the succession cause. They filed his cause to mislead the Court that the rice in the name of the deceased as at

the year 2015 whereas several transactions had taken place in the office of the Manager Mwea Irrigation Scheme and the property was in the name of the Applicant.* *The Respondent’s brother intended to defeat the transaction of surrender of the rice holding to the Applicant’s name through this Cause over the same holding being the succession cause for the previous owner.* *Both parties relied on Applicant’s annexture marked EWG1 as an exhibit being the history of rice Holding No. 3740 from the records of the National Irrlgation Board now National Irrigation Authority.* *Of particular interest were entry 110 30 to 34:* *Entry No.30 which reads on 15th October 2014 Erastua Mithamo swore an affidavit of surrender surrendering 1 acre3740(a)to Eunice Wambui Gatii (folio 80) changes were made for Erastus to own 1 acre folio 81.* *Entry No.31 reads on 16/10/2014 Erastus filed a consent form to surrender the one acre 3740a to Eunice Wambui Gatii folio 82.* *Entry No.32 reads on 17/10/2014 changes Were made folio 83* *Entry No.33 on 17J 10/2014 issued with licenses and tenant card Folio 85..* *|It is clear that on 17/10/2014 the tenant records were changed in the Office of the Manager of the Scheme after Erastus Mithamo surrendered one acre to the Applicant herein and she was issued with a tenant card and license.* *The land was no longer in the name of Naftali Kimotho and therefore the

succession cause was filed in 2015 to mislead the Court as the rice holding was not in the name of Naftali Kimotho and was in the name of Eunice Wambui Gatii who was and is live.* *Filing Succession of a land that was already subdivided.* *It is clear that as at the year 2015 the rice holding 3740 did not exist as he same had been subdivided to 3740A being on acre in the Applicant's name and 3740B being 3 acres in the name of John Njagi Kebungo.* *Entry no. 27 read that on 20th September 2014 the Respondent alone swore an affidavit surrendering the 1 acre to Alice Wambura Muraguri (folio77). It is clear that this succession cause was filed in mischief as at the date of filing the cause, the Respondent herein had already surrendered the rice holding to Alice Wambura on 20/9/2014 yet she filed this case in 2015.* *Succession of NAFTALI had already been completed procedurally in the office of the Manager Mwea Irrigation Scheme* *There is no dispute that the original owner of rice holding No. 3740 was one Kariuki Kimotho. Entry 10 of annexture EWG1 shows that after the said Kariuki Kimotho went missing, the assistant chief wrote to the manager National Irrigation Board and introduced the family. This was in accordance with rule 7 of the Irrigation Rules now repealed.* *Entry no. 11 clearly indicates that the rice holding was eventually registered in the name of Eratus

Mithamo and Jane Wanjiku became his trustee. One wonders why the Respondent went to file a succession cause 15 years later, knowing very well that there is no provision for filing succession. There is no provision for succession of rice holdings before the High Court and the rice holding was not in the name of Kariuki Kimotho. We submit that there was gross abuse of the court process.* *It appears that they continued appearing that way and following transactions together until entry no. 30 of 15/10/2014 where the records were amended for Erastus town 1 acre alone hence guardian /trustee was terminated. Jane therefore had no capacity to carry out any transactions whatsoever over the rice holding with effect from 15/10/2014 as a trustee could not unilaterally transfer or surrender the rice holding as it was not her rice holding.* *What is the effect of the succession cause?* *We submit that the succession cause was done to sanitize the illegal transactions the Respondent had entered into. The same was an abuse of the court process as it could not and was not taken to any office. Th same was also abuse of court process as under the irrigation court, rice holdings are not personal properties of people and belong to the National Irrigation board and the irrigation act has a procedure for the succession of deceased tenants.* ***The Applicant was notified of the succession

cause* *The evidence on record is clear that the Applicant was not notified of the succession cause when the same was filed knowing fully w II that she was the legal tenant of the rice holding at the time. The Applicant was condemned unheard and she was dispossessed of her land.* *There was a deliberate effort by the Respondent to have their transaction done behind the back of the applicant so as to get the rice holding from her through dubious means.* *Whether death certificate obtained* *The Respondent admitted that Naftari Kimotho wen missing. His death has never been confirmed and it is peculiar how he obtained a death certificate as no order for presumption of death was ever obtained or issued.* *The grant has ne er been used and is un-operational. The grant as obtained through concealment misrepresentation and without jurisdiction. We urge the Court to annul the grant herein and award costs to the Applicant herein.* *Dated 14/7/2025.* *M/S A. Thungu & Co. Advocates for the Applicant.”* 1. Judgment was reserved. *Issue for determination* 1. The issue for determination is whether the Grant issued to the respondent herein shall be revoked on the grounds set out in section 76 of the Law of Succession Act. Subset questions for determination are whether the property set out as estate asset was free property of the deceased or government land under licence not capable of private succession. *Determination*** 1. From the evidence before the Court, it is clear that there are multiple illegalities and irregularities with respect to the succession proceedings herein and the grant of Letters of Administration subsequently confirmed for distribution of the suit property as the only asset of the deceased.

2. Section 3 of the Law of Succession Act provides that the law of succession applies to assets of the deceased which forms his *estate, which is* made of his *free property,* and which terms are defined as follows: *“**"estate"* *means the* *free property of a deceased person;* *"free property", in relation to a deceased person,* *means the property of which that person was legally competent freely to dispose during his lifetime**, and in respect of which his interest has not been terminated by his death”* 1. The Intestate succession as here means the succession of a deceased person’s estate of which he has died intestate instructively defined under section 34 of the Act as follows: *“34. Meaning of intestacy* *A person is deemed to die intestate in respect of* *all his free property* *of which he has not made a will which is capable of taking effect.”* 1. The Law of Succession Act empowers the Court to set aside by revocation or annulment a grant of representation made under circumstances tainted with irregularity and fraud and or concealment of material facts or where the grant has become incapable of operation, as follows: *“**76. Revocation or annulment of grant* *A grant of representation, whether or not confirmed, may at any time be revoked or annulled if the court decides, either on application by any interested party or of its

own motion—* *(a) that the proceedings to obtain the grant were defective in substance;* *(b)* *that the grant was obtained fraudulently by the making of a false statement or by the concealment from the court of something material to the case;* *(c) that the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant notwithstanding that the allegation was made in ignorance or inadvertently;* *(d) that the person to whom the grant was made has failed, after due notice and without reasonable cause either-* *(i) to apply for confirmation of the grant within one year from the date thereof, or such longer period as the court order or allow; or* *(ii) to proceed diligently with the administration of the estate; or* *(iii) to produce to the court, within the time prescribed, any such inventory or account of administration as is required by the provisions of paragraphs (e) and (g) of* [*section 83*](https://new.kenyalaw.org/akn/ke/act/1972/14/eng%402022-12-31#section%2083) *or has produced any such inventory or account which is false in any material particular; or* *(e) that the grant has become useless and inoperative through subsequent circumstances.”* 1. The suit property herein did not belong to the deceased. It was not, consequently, his free property, and it could not properly the subject of succession proceedings on him. In addition, the property is government land which is allocated under licence to private persons for purposes of rice irrigation with statutory and regulatory procedures for the transfer of the property in the even of death of a licencee. A licencee could not transfer the licence without approval of the responsible government agency. It was not his free property.

2. On the competency of the proceedings before the Court, it would appear they were irregular because the subject of succession proceedings was not shown to have died or a necessary declaration as to his presumption of death under section 118A of the Evidence Act to ground the succession claim. However, the Court shall not delve into the merit of the application for the grant of letters of Administration as the Court has clearly no jurisdiction over the matter the suit property being government land and not part of the estate of the deceased as part of his free estate within the terms of section 3 of the Law of Succession Act. Conclusion 1. As the suit property was government property under licence to the deceased herein, it did not form part of his *free property* which he was capable of disposing by will within the description of *free property* and it was, therefore, not part of his *estate* under the Law of Succession Act.

2. It was improperly included in the assets of the deceased, and the process of obtaining a grant for distribution thereof was marred by illegality and it must be set aside by an order for annulment of grant as authorized by section 76 of the Law of Succession Act, for having been obtained by defective procedure with fraudulent intention to defeat purported sale of the property by the applicant’s brother.

3. It is clear that this Court was misled when the certificate of confirmation of the Grant dated 16/6/2016 (issued on 22nd JUNE, 2016) and signed by R.K. LIMO, Judge of the High Court) distributed to the 1st Respondent JANE WANJIKU NDEGE the OWNERSHIP OF HOLDING NO. 3740 in WHOLE SHARE.

4. Moreover, even if the suit property had belonged to the deceased, it had been subdivided and allocated to different persons as parcels numbers 3740A and 3740B, and there was at the time of filing of the succession proceedings no property as described in the confirmed grant. The fact of the subdivision was known to the applicant and here filing of the succession proceedings must be taken to have been fraudulent calculated to defeat interests acquired by the subdivision of the new portions, one of which (No.3740A) the applicant was registered as licencee. Needless to state, as the parcel No. 3740 did not exist, the Grant was, therefore, not capable of implementation within the meaning of section 76 of the Law of Succession Act.

5. On all considerations the Grant confirmed on 16/6/2016 must be annuled. The property must be dealt with in accordance with the statutory provisions on use of land, permits and rights and conditions for grant of permits, revocations and succession of permits, and procedures under the Irrigation Act, set out under the Irrigation Act and IRRIGATION (GENERAL) REGULATIONS, (see for example Regulations 34 -41), in terms of the principle of law that where the Constitution or Statute makes provision for the settlement of a particular dispute that procedure should be strictly followed. See *Speaker of the National Assembly v Karume* [1992] KECA 42 (KLR) that – *“[T]here is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the* [*Constitution*](http://kenyalaw.org/kl/fileadmin/pdfdownloads/Constitution%20of%20Kenya%20%28Repealed%29.pdf) *or an Act of Parliament, that procedure should be strictly followed.”* 1. There was no occasion in this matter for the filing of a *succession cause* of the inheritance of the suit asset, the public property herein. ORDERS 1. Accordingly, for the reasons set out above, the Court finds merit in the application for annulment/revocation of Confirmed Grant herein issued to the Petitioner/Respondent.

2. The Certificate of Confirmation Grant dated 16/6/2016 is annuled.

3. There shall be no order as to costs.

4. File closed. *Order accordingly.* DATED AND DELIVERED THIS 17TH DAY OF SEPTEMBER 2026. EDWARD M. MURIITHI JUDGE Appearances: Ms. A Thungu of Anne Thungu & Co. Advocates for the Applicant. Ms. Wamato of M/S Muriuki Muriithi & Co. Advocates for the Respondent.